JUDGMENT
J.D. Kapoor, J.
1. Respondent NO. 3 who is the member of the
petitioner society file a claim petition under Section 60
of the Delhi Cooperative Societies Act (in short “DSC
Act”) with the Registrar of Cooperative Societies sometime
in 1993. The matter was referred for adjudication to the
Arbitrator.
2. There were three claims preferred by Respondent
No. 3. Firstly that the actual cost of the flat allotted
to him was escalated by 27% in comparison to the estimated
cost and that the cost of the flat is not based on the
basis of actual area of the flat between the mainsliding
door and the peripheral outside walls. Second claim was
that there were number of defects in the flat allotted to
him and therefore the petitioner society may be directed
to get the said defects removed and to reconcile the cost
of the flat. Third grievance was against levying penal
interest on call money by the petitioner society.
According to the petitioner since there is no provision in
the society’s bye-laws in this regard nor had the society
arranged any loan the question of levying penal interest
did not arise.
3. The stand taken by the petitioner society was
that construction was started in January, 1990 and the
plans were approved by the General Body and therefore at
this stage it is not open to the respondent to raise any
dispute regarding designing of flats and that at the time
of construction no member knew as to which kind of flat
will be allotted to him. As regards penal interest, the
petitioner-society pleaded that resolution in this regard
was passed in General Body meeting on 24.2.1992
unanimously approving the revised cost estimates and penal
interest @ 24% on default amount from 1.3.1992 was also
approved. As regards defects in flat of respondent No. 3,
the petitioner society had agreed to remove those defects
after respondent No. 3 took possession of the flat.
4. The Arbitrator allowed all the three claims vide
award dated 22.3.1996.
5. The petitioner-society took the appeal before
the Tribunal which was dismissed vide order dated
8.7.1996. Through this petition award as well as order of
the Tribunal have been challenged. however, during the
course of argument it was pointed by learned counsel for
the society that there are dues towards maintenance
charges for six years apart from penal interest and other
dues amounting to Rs. 3,55,675.48 payable by respondent.
6. Reconciliatory effort were made. However, as
regards the claim of R-3 that the actual cost of flat was
escalated by 25% and the cost of flat is not based on the
actual area of the flat between the mainsliding door and
the peripheral outside walls, we find no force as the
designing of the flats were duly approved by the General
Body of the Society and it was not open to any member to
have choice of a particular flat as the same was to be
allotted after the draw of lots. R-3 did not raise any
objection as to the designing of the flats and to raise it
after completion of the construction is unacceptable. It
was not expected from the society to provide various plans
of the flats once the General Body had approved the
designs and plans of the flats. This itself tantamount to
furnishing of the information as to the designs and plans
of the flats. Similarly, the revised cost estimate was
also approved by the General Body. So was the resolution
regarding the penal interest to be charged at the rate of
24% on defaulted amount w.e.f. 1st March 1992.
7. Merely because there was no provision in the
bye-laws of the society to charge penal interest does not
mean that the society was not entitled to the same once
the General Body had passed the resolution. May be this
resolution was a measure to compel the members to make the
payments regularly and avoid defaults in making the
payments. the members who persistently defaulted in
making the payments cannot be allowed to enjoy the same
fruits as those who make the payments regularly. Such a
provision is to curb the tendency of the members to make
the payments of the Installments as they wished and not as
per the requirement. It is due to the defaulted members
that the construction of the flats delayed and the
interest of those who are regular in making the payments
are put in jeo pardy. Thus there was nothing wrong in
passing such a resolution and charging the penal interest.
However, the claim of the society that it is entitled to
recover the maintenance charges from the date of allotment
of flat in question was rightly declined. Society has
admitted that the flat in question suffered few defects
which the society undertook to remove. The member is not
expected to take possession of the flat the moment it is
allotted to him if it suffers from various defects. The
obligation of the society is to allot the flat free of
defect and in perfect condition. In the instant case
there were about 43 defects. Until and unless those
defects were removed the member was not expected to take
the possession. Once the member takes possession of the
flat then he has to keep on chasing the society for
removing the defects and in that eventuality the member is
always at the receiving end. Thus the society was
entitled to charge maintenance charges only from the date
of possession of the flat. Though the claim as to the
maintenance charges is a counter claim of the society yet
in order to decide the matter once for all the
reconciliatory efforts made by us have made both the
parties to abide by the following order:
“The society will not be entitled to
claim any penal interest from R-3 and R-4. R-3
shall make payment of maintenance charges from
the date of possession till date within one
month of this order”.
8. Petition stands disposed of in the aforesaid
terms.